His Holiness Lakshmindra Tirta Swamiyar Vs. the President of the Board of Commissioners for the Hindu Religious Endowments and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/784049

Subject

Trusts and Societies

Court

Chennai

Decided On

Oct-25-1932

Reported in

AIR1933Mad306; (1933)65MLJ364

Appellant

His Holiness Lakshmindra Tirta Swamiyar

Respondent

The President of the Board of Commissioners for the Hindu Religious Endowments and ors.

Cases Referred

In Mathura Prasad v. Sheobalak Ram I.L.R.

Excerpt: - - sitarama rao contends that the order of the religious endowments board can operate as a decree only if the statutory conditions are satisfied, and urges that in this case the requirement of the section regarding the service of the notice has not been fulfilled......in that section as the person who represents that institution. the question in each case therefore is, has the institution been properly served or not? when by usage one of several trustees acts as the managing or executive trustee, the notice served on such trustee must be deemed to be a proper notice as against the institution.5. the appeal fails and is dismissed with costs of the 1st respondent.reilly, j.6. i agree.

Judgment:

Venkatasubba Rao, J.

1. Mr. Venkataramana Rao has raised an objection in limine that the appeal is incompetent. The material words of Section 70 of the Madras Hindu Religious Endowments Act are:

The Court shall, on the application of the President of the Board or Committee, recover the amount as if a decree had been passed for the amount by the Court against the religious endowment concerned.

2. Mr. Venkataramana Rao contends that the effect of the section is merely to prescribe the mode of execution and that only such provisions as relate to the method of procedure become by force of this section applicable. We see no reason for adopting this very narrow construction. When the duty to execute an order of an outside body is entrusted to a judicial tribunal, it is difficult to conceive that its function is merely to perform an executive act; and, when the words employed are wide enough to include the exercise of judicial powers, there is less reason to hold that the Court does not possess them. In construing similar words occurring in Section 40 of the Revenue Recovery Act, 1864, 'as if the purchased lands had been decreed to the purchaser,' a Bench of this Court held that the intention of the Legislature was to place the purchaser in the position of a decree-holder and that he is therefore entitled to such remedies as are open to decree-holders in execution proceedings Gnana Sambanda Pandara Sannadhi v. David Nadar : (1904)14MLJ433 . The learned Judges in that case followed a previous decision to the same effect in the unreported case, A.A.A.O. No. 27 of 1889. Sambasiva Mudaliar v. Panchanada Pillai I.L.R. (1907) 31 Mad. 24 : 17 M.L.J. 441 approves of the decision in Gnana Sambanda Pandara Sannadhi v. David Nadar : (1904)14MLJ433 although the actual decision in the case relates to a different point. This view has the support also of E.D. Sasson & Co. Ltd. v. Shivji Ram A.I.R. 1929 Lah. 228 and Krishnaji Shridhar v. Mahadeo Sakharam I.L.R. (1921) 46 Bom. 128. In Mathura Prasad v. Sheobalak Ram I.L.R. (1917) 40 All. 89 the question arose under the Co-operative Societies Act, and Mr. Venkataramana Rao relies upon it as supporting his contention. It is sufficient to observe for the present that we cannot regard it as a direct authority on the question raised.

3. It is next contended that it must be shown that an order made in execution falls within Section 47 of the Code of Civil Procedure before an appeal can lie from it and that the section by its very terms excludes orders made in a proceeding of this kind. It would be contrary to the spirit of the provision conferring on the Civil Court the power to execute, to construe the word 'suit' in Section 47 in its literal and strict sense. We must hold that the words in Section 70 of the Madras Hindu Religious Endowments Act 'as if a decree had been passed' attract to the order the whole procedure in execution and the right of appeal provided under Section 47 of the Code of Civil Procedure. The preliminary objection is therefore overruled.

4. As regards the appeal itself, Mr. Sitarama Rao contends that the order of the Religious Endowments Board can operate as a decree only if the statutory conditions are satisfied, and urges that in this case the requirement of the section regarding the service of the notice has not been fulfilled. In the case of this institution, it is alleged that there are eight trustees (heads of eight mutts) and that each of them by rotation acts for a period of two years. The notice under Section 70 was served upon the active or executive trustee then in office, and Mr. Sitarama Rao maintains that, as it was not served upon the whole body of trustees, the order sought to be executed has not acquired the force of a decree. No doubt Section 70 refers to 'the trustee' as the person on whom notice is to be served; but the true intention is not that the trustee should be served, but the institution, of which he is the trustee. The funds that are liable under the section are the funds of the institution, and what is intended is that no proceedings should be taken against it before a proper notice is served on it. The trustee is mentioned in that section as the person who represents that institution. The question in each case therefore is, has the institution been properly served or not? When by usage one of several trustees acts as the managing or executive trustee, the notice served on such trustee must be deemed to be a proper notice as against the institution.

5. The appeal fails and is dismissed with costs of the 1st respondent.